BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120005216 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge to an honorable discharge.

2.  The applicant states:

* he is drug free with 15 years of sobriety
* between1970 and 1997, he was in 14 treatment centers for addiction, 135 detoxification centers, and pronounced dead 5 times from overdoses 
* he had over 100 seizures while using drugs, lost over 100 pounds, and he has diabetes and other medical issues
* he lost both parents to cancer, has been married and divorced, and he has a brother who disowns him
* he thought getting out of the Army was the right thing to do
* now he assists teens and adults by talking to them about sobriety and recovery
* his goal is to help people with addiction problems

3.  The applicant provides:

* self-authored statements
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 21 September 1972.  He completed training and was awarded military occupational specialty 36K (Field Wireman).  The highest rank/grade he attained while on active duty was private/E-2.

3.  Records show the applicant received the following court-martial convictions:

   a.  Special Court-Martial Order Number 36 issued by 4th Infantry Division (Mechanized), Fort Carson, CO, date unknown, shows that on 29 May 1973 the applicant was convicted of being absent without leave (AWOL) from on or about 23 January to 19 March 1973.

   b.  Special Court-Martial Order Number 207 issued by 4th Infantry Division (Mechanized), Fort Carson, CO, dated 6 September 1974, shows that on 9 August 1974 the applicant was convicted of being AWOL from on or about 
27 December 1973 to 2 June 1974.  His sentence was:

*	a bad conduct discharge, a forfeiture of $200 pay for 4 months, confinement at hard labor for 4 months, and a reduction to the rank of private/E-1 
*	a Disposition Board suspended 3 months of his 4-month sentence

4.  On 5 November 1974, the applicant was discharged from the Army.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with an under other than honorable conditions discharge.  This form further shows he completed a total of 1 year, 1 month, and 15 days of creditable military service and he had 360 days of lost time.

5.  On 13 March 1981, the applicant was notified the Army Discharge Review Board determined he was properly discharged and denied his request for a discharge upgrade.

6.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel. It provides guidance on characterization of service.

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

7.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U. S. Code, section 1552, the authority, under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge to an honorable discharge was carefully considered.

2.  The record does not show, nor has the applicant provided evidence showing, the special court-martial proceedings against him were not conducted in accordance with law and regulations.  

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the nature of the applicant's misconduct and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  The applicant has failed to provide sufficient evidence to merit an upgrade of his discharge as a matter of equity.  As a result, clemency is not warranted in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x___  ___x_____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  x _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120005216



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ABCMR Record of Proceedings (cont)                                         AR20120005216



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